When Justice John Paul Stevens intervened in a Supreme Court argument on Wednesday to score a few points off the lawyer who was defending the death penalty for the rape of a child, the courtroom audience saw a master strategist at work, fully in command of the flow of the argument and the smallest details of the case. For those accustomed to watching Justice Stevens, it was a familiar sight.
But there was something different that no one in the room knew except the eight other justices. In the decision issued 30 minutes earlier in which the court found Kentucky's method of execution by lethal injection constitutional, John Paul Stevens, in the 33rd year of his Supreme Court tenure and four days shy of his 88th birthday, had just renounced the death penalty.
In an opinion concurring with the majority's judgment, Justice Stevens said he felt bound to "respect precedents that remain a part of our law." But outside the confines of the Kentucky case, he said, the time had come to reconsider "the justification for the death penalty itself."
He wrote that court decisions and actions taken by states to justify the death penalty were "the product of habit and inattention rather than an acceptable deliberative process" to weigh the costs and risks of the penalty against its benefits.
His opinion, which was not separately announced in the courtroom, was the culmination of a remarkable journey for a Republican antitrust lawyer.
During his tenure, Justice Stevens, originally an opponent of affirmative action, has changed his views on that and other issues. "Learning on the job is essential to the process of judging," he observed in a speech in 2005.
But it is on the death penalty that his evolution is most apparent. He was named to the Supreme Court by President Gerald R. Ford at a time when ferment over capital punishment was at a peak. Less than four years earlier, the court had invalidated every death penalty statute in the country, and states were racing to draft laws that would test the court's tolerance for a fresh start.
But in her zeal to coronate Stevens for having grown in office (i.e., adopted liberal views), Greenhouse leaves the 5th Amendment to the Constitution utterly unmentioned, which clearly holds the death penalty to be constitutional as long as there is "due process of law."
No person...shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In 2004 Greenhouse gushed over another conservative justice who "evolved" into a liberal, Harry Blackmun, who wrote the Court's notorious majority decision in Roe v. Wade. Greenhouse was the only print reporter to gain access to Blackmun's private papers before their public release.